delivered the opinion of the court, January 3d 1882.
The Hoosier Drill Company, plaintiffs below, appointed the defendant their agent to make sale of their agricultural implements in certain townships of Fayette county. The article of agreement between the parties, after having in express terms created such agency, contains this further provision : “In consideration of the said agency, the said J. C. Johnson & Co. hereby agrees to make every reasonable effort to sell as many of *219said implements, in said territory, as the trade therein will demand, by thoroughly and diligently canvassing the territory herein mentioned during the season, and also agrees to guarantee the sale of all the following described implements, and all others ordered by them during the season, and further agrees not to sell (directly or indirectly) any other grain drill, except the Hoosier, while this agency exists.”
The evidence, on the part of the defendant, shows that he was engaged for about two months in canvassing the district,'a portion of the time with an assistant, and expended a considerable amount of money in prosecuting said canvass. lie succeeded in making sales of a number of plaintiffs articles, among others, upwards of twenty drills. He was able to deliver only five drills, the plaintiffs having declined to furnish more, upon the ground of their inability to do so, the demand for their implements having greatly exceeded the capacity of their works. The plaintiffs having brought suit to recover the value of the five drills delivered, the defendant attempted to set off, by way of defence, the damages sustained by him by reason of plaintiff’s refusal to deliver the drills as ordered. By the defendant’s point the learned judge was requested to instruct the jury: “ That if defendant, under the contract of December 13th 1878, performed services, and made sales of drills, &c., which he was authorized to sell, and ordered the same from the company, and the company refused, or failed, to furnish the drills, &c., so sold and ordered, the defendant may set off against plaintiff’s claim the value of his services in making such sales, or the amount he would have realized by said sales if the drills had been furnished.”
This instruction was refused, the learned judge conceding the merit of the defence, yet holding under the language of the contract the defendant could not avail himself of it, and gave the jury a binding instruction to find for the plaintiffs.
No reason was given for this ruling. In the argument at bar, however, the learned counsel for the plaintiffs relied principally upon the following: 1st. That the defendant had not taken written orders from the purchasers as required by the agreement; and 2d. That the company did not agree to furnish the drills.
It is sufficient to say, in regard to the first proposition, that the company did not decline to furnish the drills because the defendant did not send written orders from the purchasers. On the contrary, it distinctly appears from the plaintiff’s letters of August 25tli aud September 30th 1879, that the refusal was “ not from any lack of desire on our part, but because we were entirely unable to fill your orders at time received. It was not in our power to meet the demand in full for our drills this *220season.” The reason now set up, that the orders were not in writing, is manifestly an after-thought, and an attempt to avoid the consequences of their failure to deliver the drills.
An agreement to deliver such implements as the defendant sliotild succeed in selling is necessarily implied from the express terms of the contract. The defendant was not only authorized to sell, but he was required to exert himself to do so. He was to canvass the territory specified in the agreement, and he was, moreover, bound not to. sell any other grain drill'than the one made by plaintiffs. Where an agent sells an article with the authority of the principal, I know of no rule of law which would justify a refusal to deliver it on the part of such principal, and, at the same time, deny all compensation for the breach.
The defendant’s point should have been affirmed. The right, under our defalcation act, to set off the damages arising from such breach of contract, has been settled by Shaw v. Badger, 12 S. & R. 275; Huber v. Tamney, 5 Watts, 51; Patterson v. Hulings, 10 Barr 506; Hunt v. Gilmore, 9 P. F. S. 150, and numerous later cases.
The judgment is reversed, and a venire facias de novo awarded.